545 F.3d 179 (2nd Cir. 2008), 05-2856, United States v. Mejia

Docket Nº:05-2856-cr, 05-6683-cr(CON), 06-1744-cr(CON).
Citation:545 F.3d 179
Party Name:UNITED STATES of America, Appellee, v. Leonel MEJIA, a/k/a Little Chino, Defendant, David Vasquez, a/k/a Gigante, and Ledwin Castro, a/k/a Hueso, Defendants-Appellants.
Case Date:October 06, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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545 F.3d 179 (2nd Cir. 2008)

UNITED STATES of America, Appellee,

v.

Leonel MEJIA, a/k/a Little Chino, Defendant,

David Vasquez, a/k/a Gigante, and Ledwin Castro, a/k/a Hueso, Defendants-Appellants.

Nos. 05-2856-cr, 05-6683-cr(CON), 06-1744-cr(CON).

United States Court of Appeals, Second Circuit.

October 6, 2008

Argued: Aug. 30, 2007.

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Richard P. Donoghue, Assistant United States Attorney (Roslynn R. Mauskopf, United States Attorney for the Eastern District of New York, and David C. James, Assistant United States Attorney, on the brief), Brooklyn, NY, for Appellee.

Peter J. Tomao, Garden City, NY, for Defendant-Appellant Ledwin Castro.

Charles S. Hochbaum, Brooklyn, NY, for Defendant-Appellant David Vasquez.

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Before: JACOBS, B.D. PARKER, and HALL, Circuit Judges.

HALL, Circuit Judge:

Appeal from judgment of conviction entered in the United States District Court for the Eastern District of New York (Wexler, J. ) for conspiracy to commit assaults with a dangerous weapon in aid of racketeering activity, 18 U.S.C. § 1959(a)(6), three counts of assault with a dangerous weapon in aid of racketeering activity, id. § 1959(a)(3), and three counts of discharge of a firearm during a crime of violence, id. § 924(c)(1). We vacate the judgment after finding that the admission of expert witness Hector Alicea's testimony violated the Federal Rules of Evidence and the Sixth Amendment Confrontation Clause, and that the error was not harmless. We remand for retrial.

BACKGROUND

I. The Drive-By Shootings

On June 18, 2003, Ledwin Castro and David Vasquez (collectively, “ Appellants" ), along with several others, participated in two drive-by shootings on Long Island, New York. At the time, Appellants were members of the MS-13 gang.1 MS-13 is a nationwide criminal gang organized into local subunits known as “ cliques." At the time, to become a full member of MS-13, an individual was required to “ make his quota," which meant to engage in acts of violence against members of rival gangs, such as the SWP and the Bloods. MS-13 had local cliques on Long Island, and Castro was the leader of the Freeport clique (the “ Freeport Locos Salvatruchas," or “ FLS" ).

On the day of the shootings, Vasquez, Castro, Ralph Admettre (a member of MS-13), and Nieves Argueta, a new initiate into MS-13, met at the apartment of Bonerje Menjivar (also a member of MS-13). There, the group discussed their plan to shoot members of rival gangs. They had been preparing to carry out the shootings for quite some time. A few weeks earlier, Admettre, acting at Castro's direction, had stolen the van that they would use. Earlier that day, Vasquez had informed Admettre that he-Vasquez-had procured a handgun belonging to the Freeport clique. While the group was at Menjivar's apartment, Menjivar gave Castro ammunition for the handgun.

Admettre, Castro, Vasquez, and Argueta put the plan into action that night. At about 9:40 p.m., Admettre drove the others to a laundromat in Hempstead, New York. After Vasquez and Castro reconnoitered the scene, attempting to determine whether anyone in the parking lot was a member of SWP, a rival gang, Admettre left the laundromat parking lot and stationed the van in a gas station parking lot across the street. Once the van was in position, Vasquez fired at the crowd in the laundromat parking lot from inside the van. Two individuals were hit. Ricardo Ramirez, age fifteen, was hit by three shots in the chest, arm, and leg. Douglas Sorto, age sixteen, was hit once in the leg. Both victims survived the shooting. After Vasquez fired these shots, Admettre drove away. Castro then called Menjivar and informed him that more ammunition would be needed. Admettre drove everyone back to Menjivar's apartment, and Menjivar gave Vasquez additional ammunition.

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Shortly thereafter, at approximately 10:20 p.m., Admettre, Castro, Vasquez, and Argueta traveled to a delicatessen parking lot in Freeport, New York. Upon arriving, they saw a group of young black men who they believed were members of the Bloods, a rival gang. Vasquez handed the handgun to Argueta, who proceeded to shoot one of the young men, Carlton Alexander, seven times in the back. Despite being hit by multiple shots, Alexander survived. After the shooting, the four men immediately abandoned the van. About one month later, local law enforcement arrested Castro, Vasquez, Admettre, and Argueta.

II. Indictment and Trial

In February 2004, a federal grand jury indicted Vasquez, Castro, and twelve others for various offenses stemming from a series of violent incidents on Long Island between August 2000 and September 13, 2003. A superseding indictment (“ the Indictment" ) was returned on June 23, 2005. The Indictment described MS-13, or “ La Mara Salvatrucha," as a gang that originated in El Salvador but had members throughout the United States. It accused all of the defendants of being members of MS-13, and it alleged that MS-13 members “ engaged in criminal activity" in order to increase their position within the organization. According to the Indictment, MS-13 constituted an “ enterprise" under 18 U.S.C. § 1959(b)(2) because it was an ongoing organization the activities of which affected interstate commerce. The Indictment furthermore stated that MS-13 engaged in two forms of racketeering activity under 18 U.S.C. § 1961(1): (1) acts and threats involving murder as defined by New York State law, and (2) narcotics trafficking as defined by federal law.

The Indictment charged both Appellants with ten counts. Count One charged them with conspiracy to commit assaults with a dangerous weapon in order to maintain and increase their position within the MS-13 racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(6). Counts Six, Seven, and Eight charged Appellants with assaulting Ramirez, Sorto, and Alexander, respectively, with a dangerous weapon in order to maintain or increase their positions in the MS-13 racketeering enterprise, in violation of 18 U.S.C. § 1959(a)(3). Counts Twelve, Thirteen, and Fourteen accused Appellants of discharging a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). The Indictment identified the relevant crimes of violence as the assaults charged in Counts Six, Seven, and Eight. Finally, Counts Seventeen, Eighteen, and Nineteen charged Appellants with using an explosive to commit a felony-the felonies being the assaults charged in Counts Six, Seven, and Eight-in violation of 18 U.S.C. § 844(h)(1).2

The district court severed the charges against Appellants from the charges against some of their co-defendants. Appellants' remaining co-defendants pleaded guilty to assault, and Admettre pleaded guilty to the conspiracy charge and to using a firearm during a crime of violence. Appellants proceeded to trial before the district court. During the course of the trial, which took place between July 19 and July 26, 2005, the Government called Hector Alicea, an officer with the New York State Police, as an expert witness. The Government also called the three shooting victims and co-defendants Admettre and Menjivar. In addition, the Government

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introduced into evidence telephone records, the firearm used in the shootings, ballistics records, and Appellants' post-arrest confessions.

Admettre testified to his membership in MS-13 and about the gang's structure and operations. He stated that MS-13 was in “ an all out war with rival gangs" -a war that included shootings, stabbings, fighting, and murder-and that MS-13 had a policy to murder the members of rival gangs. Admettre went on to identify Appellants as members of MS-13. He also described an uncharged shooting involving both Appellants that took place in February 2003:

David Vasquez identified [an] SWP member and opened fire. And Castro jumped out along with Vasquez to chase the SWP member down the block and both of them fired.

Later, Menjivar also testified about his membership in MS-13 and about the gang's structure and operations. Menjivar further testified that the Freeport clique sent money to El Salvador to help members who had been deported from the United States. Alicea testified about MS-13's history and structure, and he also explained MS-13's activities on Long Island. Because the nature of Alicea's testimony is an important and disputed issue on appeal, the subjects about which he testified are discussed further in our analysis of Appellants' challenge to the admission of his testimony.

III. The Jury Verdict and Sentencing

On July 26, 2005, the jury found Appellants guilty on all ten counts. In a special verdict, the jury further found that MS-13 was an enterprise that affected interstate commerce; that MS-13 engaged in acts and threats of murder; that Appellants were members of the MS-13 enterprise; and that Appellants had participated in the conspiracy to assault and in the charged assaults in order to maintain or increase their positions within MS-13. The jury failed to find, however, that MS-13 engaged in the racketeering activity of narcotics trafficking.

One week later, Appellants asked the district court to set aside the verdict and enter a judgment of not guilty pursuant to Federal Rule of Criminal Procedure 29, or in the alternative to vacate the judgment and order a new trial pursuant to Federal Rule of Criminal Procedure 33. They claimed multiple errors. First, they claimed that the jury's failure to find that MS-13 engaged in narcotics trafficking was fatal to the verdict because the Indictment had not pleaded the two racketeering activities (murder and narcotics trafficking) in the alternative. Second, they argued that the proof of MS-13's involvement in murder was insufficient. Third, they asserted that the Government had failed to prove that the MS-13 enterprise had an...

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